SARS: Balancing public safety and individual freedom is a challenge

Laws have lagged behind ideology of modern society

If there was anyone left in doubt, the severe acute respiratory syndrome (SARS) epidemic has put the question to rest. Infectious diseases are back as a major threat to human health, say world public health officials, even among industrialized nations that once believed they were safe from harm.

"The good news, hopefully, is that we will use the SARS experience as a cautionary tale about what we need to do about germs and the public health," says Howard Markel, MD, PhD, a professor of pediatrics and communicable diseases and director of the Center for the History of Medicine at the University of Michigan in Ann Arbor, and author of the books Quarantine! and the soon-to-be published When Germs Travel.

With the advent of vaccines and antibiotics in the middle part of the last century, the conventional wisdom held that the era of infectious diseases as major killers of humankind was over, Markel says.

But the recent emergence of new infectious agents as well as the development of antibiotic resistance in older bacterial pathogens is making it clear that the conventional wisdom was wrong.

"We live in a world of germs," says Markel. "In the last hour, 1,500 people worldwide died of AIDS, tuberculosis, and malaria. And those are diseases we can either prevent or treat. A million children died of measles last year, and we’ve had a shot for that since 1963 that costs a quarter. I hope the lesson that we learn is that we need to globalize our public health mechanism."

Such a feat is much easier said than done, say public health officials. In the United States alone, a slew of antiquated public health laws, many of which vary widely state by state, are making it difficult for the country to respond to threats of large-scale epidemics such as SARS, anthrax, or smallpox.

"Bioterrorism issues have strengthened the public health response at the federal level," says Ed Septimus, MD, medical director of infectious diseases at Memorial Hermann Healthcare System, an 11-hospital system based in Houston. "We have some problems at the local level — that’s a different issue. But when you look at how long it took us to identify the agent that caused AIDS and how look it took to map the genetic fingerprint of the virus, it took years. With SARS, it took days. Our ability, from a public health standpoint, to respond and identify and develop genetic technology is far better than it used to be."

But once the threat has been identified, knowing what to do with cases of infected persons vs. people who have been exposed or possibly exposed will be up to local health officials in individual regions and states. It is at this level that things begin to get tricky.

At Memorial Hermann, the infectious disease faculty and infection control professionals have worked hard to disseminate information about SARS, emphasize the need for vigilant screening persons presenting to the emergency department and to physicians’ offices, and reinforce the message as time goes on, Septimus adds.

When patients come to the hospital ED with symptoms that might match the case definition, they are given a mask and put into respiratory isolation in a negative-pressure room. But in physicians’ offices, there are no negative-pressure rooms.

"We’ve told them that if they have a patient with a suspicious history, they need to put a mask on them and get them back into one of the exam rooms," he says. "We’ve also had to instruct our clinicians that if you have someone who is not that ill and doesn’t require hospitalization, but may potentially have SARS, you need to confine them to a location. That is tricky. It is a sort of voluntary quarantine of sorts. Most responsible people understand that. But what if they don’t?"

Use of quarantines

In particular, the possible use of quarantines to confine individuals exposed to the SARS virus has been one of great discussion in public health circles and the media, notes James Hodge, JD, LLM, deputy director of the Center for Law and the Public’s Health at Georgetown and Johns Hopkins Universities.

The problem — and many state public health laws reflect this — is that many people have outdated notions about what the term "quarantine" means, he says. Images of large numbers of people rounded up and confined for long periods of time in a designated location are out of step with modern public health practices in the United States.

"Quarantine and isolation are not old concepts that we don’t use anymore. They are regularly employed," he notes. "The difference is we don’t use them on a mass scale."

Isolation of people with particularly contagious conditions, or drug-resistant contagious conditions, is routinely done in hospitals and other health care facilities. And quarantine, which usually is defined as a limitation placed on the movement of people thought to be exposed to a condition, is done in limited circumstances also, Hodge says.

"To be perfectly honest, a quarantine might be useful for the flu in certain circumstances," he says. "If there is an extremely virulent strain of it in a particular area or if you have a particularly vulnerable population that is affected — say a virulent strain that is being transmitted and unable to be controlled in a skilled nursing facility — public health officials may institute a limited quarantine for a specific period of time."

The difference between that kind of quarantine and what has traditionally been known as quarantine is usually that it is voluntary and for a short duration, Hodge explains.

"We are already seeing with SARS very appropriate and responsible uses of quarantine and isolation," he continues. "It has been coming down in the form of a general recommendation from public health authorities that anyone who feels they might have come into contact with a SARS case to refrain from certain types of contact for a short period of time. It is certainly not rounding people up and putting them in a hotel until we are sure they don’t have it. It is also not telling them that they have to stay at home constantly. It is basically tailoring a quarantine message in a way that is functional and practical — concentrating on a time period in which a person may be looking for symptoms and the ways in which they might avoid infecting others. We rely on individuals to voluntarily comply with those sorts of suggestions. It would only get more coercive if we see people becoming infected at a greater rate or if we see people who may have been exposed to SARS intentionally or blatantly avoiding these public health recommendations."

State laws out of date

However, although most states seem to be using isolation and quarantine efforts responsibly, the public health laws on the books in many areas do not reflect such modern concepts, says Hodge.

"What many states have is a single-line item quarantine authority in the statute that says something like, The secretary of the Department of Health is authorized to use quarantine in any cases involving communicable diseases that may threaten the population,’ period," he explains. "That could authorize quarantine for a fantastic amount of things."

Under these public health laws, people with HIV or AIDS, or even influenza could be quarantined involuntarily. Even though states have not attempted to use their powers in this manner, the laws do not reflect the legal standards that should underlie such measures, Hodge says.

"Constitutionally, you need to restrict the measure of the quarantine because it is coercive, it infringes on civil liberties, and it should be restricted to instances involving significant risk to individuals," he explains. "And you should attempt to address a problem with the least-restrictive measures, using involuntary quarantine as a last resort. We should use the least-restrictive ways we can use to bring a halt to a disease spreading."

The U.S. Supreme Court has ruled that it is inappropriate to quarantine individuals who have communicable diseases but do not pose a significant risk of transmission to others, he says.

"For example, tuberculosis is only in its active, communicable state for a brief period; and the rest of the time, a person with TB is completely at no risk to anyone else, and they are out in the population," he says. "No one needs to quarantine or isolate a person under those circumstances. There is no justification — ethically, legally, you just can’t do it."

Model statutes provide guidance

Following the terrorist attacks on Sept. 11, and then the subsequent anthrax mailings, the center, at the request of the Bush administration and several state legislators, began work on model legislation that would guide states in ensuring they were prepared to respond to large-scale public emergencies.

"We drafted the State Emergency Health Powers Act, which is a model set of provisions about the sorts of powers we in public health may need to exercise during what we define as a public health emergency. And we have a very high-threshold definition of a public health emergency, a very serious set of circumstances that would justify a governor’s declaration of an emergency that would trigger a series of powers," Hodge says.

The model emergency health powers act also is part of a larger project that is working on a model State Public Health Act, which would cover all state public health powers, Hodge adds.

"When you look at existing state laws, you see a lot of fragmentation and inconsistencies, and a lot of antiquation in some ways," he explains. "What we are trying to do is not necessarily provide a solution for all of that but rather to provide a starting point for states to look at their own internal codes and public health laws to really get a sense of how they might improve. We want to structure these laws to reflect modern scientific principles, modern constitutional principles, modern principles of ethics, and other sorts of issues."

The model legislation is meant to serve as a starting point for discussion, rather than set-in-stone draft legislation to be taken in whole by states across the union.

"These models do not in any way obligate the states. They can use some of the measures or all of them," he adds.

Tailoring public health interventions

A key modern concept the model public health laws support is the tailoring of public health interventions to meet the specific needs of the health emergency, explains Hodge.

"You see different measures with different diseases. With West Nile virus, another infectious disease, the issue of quarantine and isolation never came up," he states. "The reasons are really very simple — you can’t spread it person to person. As a result, the public health measures used to combat West Nile are the environmental methods — either eliminating the mosquitoes that spread the virus or eliminating the disease in the animal population."

Quarantine and isolation only would be used with communicable diseases that easily spread via airborne transmission.

"You don’t see it used with HIV and AIDS, even though the virus can be communicated easily in epidemiologic terms. But we would use it with conditions like SARS," says Hodge.

Even in those situations, it would be important to move from the least restrictive measures first, to more coercive measures if initial efforts failed to halt spread.

At the other end of the spectrum, you don’t want health officials to be too hesitant to initiate a quarantine measure.

"I think that’s where China, if they’ve made mistakes, it is not taking a proper epidemiologic perspective on this particular condition," Hodge says. "For one thing, not doing effective surveillance from the start and then not considering that the disease might be spread through human contact. They were looking at all of the various other ways. Was it through insects? Was there some sort of contamination in the environment? As you explore all of the possibilities, you do have to work under the assumption, for a period of time, that person-to-person transmission is possible."

In the United States, some quarantines were instituted in the initial days of the anthrax exposures even though anthrax is not spread via human contact.

"There was a fear that maybe the spores could survive on the clothes or belongings of those exposed and therefore be spread to others," Hodge notes. "There were some regrettable things done in the first few days of the exposures, in terms of restricting persons with the illness. But it was a safer method of protecting the population, for a period of time."

Due-process issues

Any type of quarantine measure also must be coupled with due-process protections written into the law, adds Hodge. Most of the current state laws do not provide any specific measures of appeal a person subjected to a quarantine order may use.

"When these measures are practiced at the state level, they do provide due process; but our model basically says, Let’s get all of this scientific and constitutional stuff on the table and make it a statutory requirement so there is no question what authorities need to do during an emergency or otherwise," Hodge says.

Use of quarantines to contain the spread of communicable diseases has always been a tug of war between individual freedoms and the greater good — with the greater good almost always winning, says Markel.

In previous decades, health officials had little to offer patients who contracted a contagious, life-threatening disease — there were often no available treatments or vaccines. So people who got the disease or those known to be exposed were isolated from the rest of society and, basically, left to sink or swim.

In the cholera quarantines used in New York in the late 1800s, people were quarantined in large numbers in isolated areas without access to clean food and water or medical care.

"What has changed in the last 100 years is that we tend to be more concerned about the needs and health of the individuals in quarantine," Markel says. "It is becoming as important as the need of the greater good."

(Editor’s note: More information about the Center for Law and the Public’s Health model public health laws can be found on the center’s web site at


Howard Markel, MD, PhD, Center for the History of Medicine, 100 Simpson, Box 0725, Ann Arbor, MI 48109.

James Hodge, JD, LLM, Center for Law and the Public’s Health, Hampton House, Room 582, 624 N. Broadway, Baltimore, MD 21205-1996.

Ed Septimus, MD, 7777 Southwest Freeway 770, Houston, TX 77074-1869.